The veteran, whose name has not be disclosed publicly, worked as a translator for the Marines in the Anbar province, which borders Iraq, before being detained by the U.S. military at a facility near the Baghdad airport on suspicion that he had helped get classified information to enemy combatants, AP reports, adding that the veteran was never charged with a crime and has denied breaking the law.

He filed suit in 2008, claiming in court briefs that he was repeatedly abused before he was released without explanation in August 2006. He has claimed that Rumsfeld personally approved torturous interrogation techniques on a case-by-case basis and controlled his detention in violation of his constitutional rights, according to the AP report.

The Department of Justice, which is defending the former defense secretary, declined to comment to the Law Blog about the case.

The Obama administration, AP reports, has claimed that Rumsfeld cannot be sued personally for official conduct and further that a judge cannot review wartime decisions that are the constitutional responsibility of Congress and the president.

But federal judge James Gwin rejected those arguments, according to AP, and said U.S. citizens are protected by the Constitution at home or abroad during wartime.

The court finds no convincing reason that United States citizens in Iraq should or must lose previously declared substantive due process protections during prolonged detention in a conflict zone, Gwin wrote in a Tuesday ruling.

* * * * Ultimately, Doe says, Rumsfeld authorized the policies and actions that resulted in violations of Doe's substantive and procedural due process rights, as well as the denial of Doe's access to courts to challenge his detention. [Doc. 4 at 36.] Doe asks this Court to hold Rumsfeld personally liable by allowing a money damages remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for these alleged constitutional violations.

Doe also sues Defendants Janet Napolitano, Secretary of the United States Department of Homeland Security, Robert S. Mueller III, Director of the Federal Bureau of Investigation, Alan Bersin, Customs and Border Protection Commissioner, and John Morton, Assistant Secretary of the United States Immigration and Customs Enforcement, in their official capacities, to secure the return of the property seized upon his detention and for alleged violations of his right to travel.1

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Finally, Doe brings claims against unidentified officers or agents of the United States, alleging: (1) false arrest, (2) unlawful detention and conditions of confinement, (3) torturous and unlawful interrogation, (4) denial of the right to counsel and the right to confront adverse witnesses, (5) denial of the right to present witnesses and to have exculpatory evidence disclosed, (6) denial of access to courts and to petition, (7) blacklisting, and (8) conspiracy.2

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-- excerpt of JOHN DOE v. DONALD RUMSFELD, et at.
CASE NO. 1:08-CV-1902, UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA
Dated: August 2, 2011

I am perusing it to see what the LEGAL basis is for the judge's determination that Rumsfeld wouldn't have immunity?

Interesting analysis (but I'm still just skimming through it, so who knows?)

IV. Bivens Remedy
Doe next urges this Court to recognize a private right of action under Bivens v. Six Unknown Named Agents for money damages based on the constitutional violations alleged in his complaint. 403 U.S. 388.

In Bivens, the United States Supreme Court established that where federal officials violate a constitutional right, victims of that violation have a private cause of action for money damages against the officials in federal court, even if no statute explicitly creates such a cause of action. Id. at 396. The Bivens Court allowed a suit against federal narcotics agents based on alleged Fourth Amendment violations, finding that the plaintiff's cause of action could be implied directly from the face of the Constitution. The Court held that, as a universal premise, "'where federally protected rights have been invaded . . . courts will be alert to adjust their remedies so as to grant the necessary relief.'" Id. at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)); Bush v. Lucas, 462 U.S. 367, 374 (1983) (finding that 28 U.S.C. § 1331's general jurisdictional grant to decide cases arising under the Constitution not only grants federal courts the authority to decide whether a constitutional

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violation occurred, "but also the authority to choose among available judicial remedies in order to vindicate constitutional rights." (citing Hood, 327 U.S. at 684)). The Supreme Court has since recognized that, in addition to compensating victims, a fundamental purpose of Bivens is to deter individual officers from committing constitutional violations. See Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (citing FDIC v. Meyer, 510 U.S. 471 (1994)).

In allowing for a damages remedy directly under the Constitution, the Bivens Court noted that the case before it "involve[d] no special factors counseling hesitation in the absence of affirmative action by Congress." Bivens, 403 U.S. at 396. In Wilkie v. Robbins, the Supreme Court clarified this and held that a remedy under Bivens "is not an automatic entitlement." 551 U.S. 537, 550 (2007). Rather, the Wilkie Court said, courts must follow a two-step process in deciding whether to recognize a Bivens remedy. First, they must determine "whether any alternative, existing process for protecting the interest" exists. Id. (citing Bush, 462 U.S. at 378); see Bivens, 403 U.S. at 397 (recognizing that implied remedies under the Constitution may be unnecessary upon "explicit congressional delegation" that claims "must instead be remitted to another remedy, equally effective in the view of Congress."). Second, courts must independently determine whether "any special factors" counsel judicial hesitation. Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at 378). If alternative remedies or special factors counseling hesitation are present, a damages remedy may not be implied under Bivens.

Rumsfeld argues that allowing monetary damages in this case would constitute a "radical extension of Bivens'" [Doc. 11 at 16 (citing Detainees Litig., 479 F. Supp. 2d at 103-107).] Specifically, Rumsfeld says that recognizing a Bivens action here would ignore several special factors counseling hesitation that are rooted in institutional competence and practical national

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security concerns. [Doc. 11 at 15-26.] Because, however, this Court concludes that no remedy outside of Bivens exists for plaintiffs like Doe and that no special factors counsel judicial hesitation, the Court finds that Doe may maintain a federal cause of action against Rumsfeld under Bivens.

Recognizing that the Judge's opinion will be subject to one or two layers of judicial (appellate) review, I will say his opinion does seem to be rational at least at first blush:

Rumsfeld contends that two important special factors counsel hesitation in offering relief in this case. First, he argues that allowing a Bivens remedy here would improperly lead the Court to review wartime matters and foreign affairs constitutionally committed to the President and to Congress. Second, Rumsfeld identifies practical institutional competence and national defense concerns that he says further caution against a Bivens remedy. Yet, in large part because the judicial protection of individual liberties is appropriate here, where allowing a Bivens remedy does not require a general expansion of judicial authority into core war-making powers, the Court finds that

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no special factors preclude Doe's Bivens claim.

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Id.

The next lengthy portion of the decision addresses that analysis. Very interesting reading.

The Obama administration, AP reports, has claimed that Rumsfeld cannot be sued personally for official conduct and further that a judge cannot review wartime decisions that are the constitutional responsibility of Congress and the president.

The Obama administration, AP reports, has claimed that Rumsfeld cannot be sued personally for official conduct and further that a judge cannot review wartime decisions that are the constitutional responsibility of Congress and the president.

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